New York theft crimes come in a variety of offenses from misdemeanor to felony and non-violent to violent. Some crimes may be punishable by up to one year in prison while others can land you in prison for as long as twenty five years. When that crime involves a vehicle theft, the value of the car usually has a direct impact on the crime. Some thefts are automatically felonies such as New York Penal Law 155.30(8). This offense, Fourth Degree Grand Larceny, makes it a felony to steal a vehicle valued in excess of $100. However, if the car is worth more than $3,000 or $50,000, the crime would be kicked up to New York Penal Law 155.35 or 155.40 respectively. These offenses carry even greater sentences of imprisonment beyond the four years associated with PL 155.30(8), aka, Grand Theft Auto.
This blog entry will deal not with the actual theft of a car, truck or SUV in New York, but the unauthorized use of the same and what conduct rises to the level of violating NY PL 165.05, Third Degree Unauthorized Use of a Vehicle.
To start things off, let’s first examine the statute defining Unauthorized Use of a Vehicle in New York. Pursuant to New York Penal Law 165.05(1), you are guilty of Unauthorized Use of a Vehicle in the Third Degree when you knowing that you do not have the consent of the owner, you take, operate, exercise control over, ride in or otherwise use a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent. An “A” misdemeanor, a conviction for PL 165.05(1) is punishable by one year in a county jail such as the infamous Rikers Island.
Putting the scare behind you, the question or issue to address in this blog entry is what conduct or actions are criminal when coupled with PL 165.05? In People v. Gavrilov, 2013-135 K CR, NYLJ 1202741921574, at *1 (App. Tm., 2nd, Decided October 21, 2015), the defendant was observed entering the complainant’s vehicle and taking his wallet. The accusatory instrument provide nothing more as to his conduct. Although the defendant pleaded guilty, the appellate court ultimate found that the complaint against the defendant charging this offense was not legally sufficient. According to the court:
“[E]ntry alone is not enough under the statute, which expressly requires some degree of control or use [of the vehicle] (see People v Franov, 17 NY3d 58, 64  [“(w)hether denominated as exercising control over or otherwise using a vehicle, . . . a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle”]). Here, since the accusatory instrument simply alleged that defendant was observed entering Andre Pantaleo’s car and taking Pantaleo’s wallet from the car, the instrument did not establish that defendant took actions that interfered with or were detrimental to Pantaleo’s possession or use of the vehicle (cf. Franov, 17 NY3d 58). As a result, the instrument did not demonstrate that defendant had exercised control over the vehicle, let alone took it, operated it, rode in it, or otherwise used the vehicle. Thus, the factual allegations contained in the accusatory instrument did not sufficiently allege facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 ) or provide reasonable cause to believe that defendant had committed the offense of unauthorized use of a vehicle in the third degree (see CPL 100.40  [b]), the count to which he pleaded guilty.
In this particular case the dismissal was relative. Why? There was a remaining charge of Petit Larceny, NY PL 155.25, for the theft of the wallet. PL 155.25 and PL 165.05 are the same degree offense. Each are misdemeanors carrying a sentence of up to one year in jail. Despite this, the case decision is an important one. It reaffirms that more than presence in a vehicle is required to establish the crime of PL 165.05. Additional acts, analyzed on a case by case basis, are necessary. In the event that there was not a theft of a wallet, it is likely that the case in its entirety would have been dismissed. Discuss with your own attorney or criminal lawyer how, if at all, this case may be relevant to your legal predicament.
To learn about Grand Larceny of a vehicle, New York Penal Law 155.30(8), misdemeanor and felony Unauthorized Use of a Vehicle or other theft related crimes, please follow the links or review this blog and the sites listed below.
The New York criminal defense attorneys and former Manhattan Assistant District Attorneys at Saland Law PC represent clients in all theft and stolen property arrests and indictments throughout New York City and the immediate region.